Opinion
G054067
12-20-2017
THE PEOPLE, Plaintiff and Respondent, v. IBRAHIM M. SHAH, Defendant and Appellant.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14WF4456) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed. Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant, Ibrahim M. Shah, guilty of felony vehicle taking with a prior conviction (Pen. Code, § 666.5, subd. (a); Veh. Code, § 10851, subd. (a); count 1) and receiving a stolen vehicle worth more than $950 (§ 666.5, subd. (a), § 496d, subd. (a); count 2). Defendant admitted he was previously convicted of a violation of Vehicle Code section 10851. The court sentenced defendant to three years in jail.
All further statutory references are to the Penal Code unless otherwise stated.
Defendant appeals, contending the trial court abused its discretion in failing to impose a split sentence pursuant to section 1170, subdivision (h). Recognizing his trial counsel failed to object to the court's sentencing approach and therefore he forfeited his right to complain on appeal, defendant also contends trial counsel rendered ineffective assistance.
We agree the court failed to comply with mandatory directives in section 1170, subdivision (h)(5)(A) and California Rules of Court, rule 4.406(b)(11) to state on the record its reasons, if any, for denying mandatory supervision, i.e., a split sentence. However, defendant forfeited his right to raise the error by failing to object during the sentencing hearing. On appeal defendant has failed to demonstrate prejudice, so his ineffective assistance of counsel claim is without merit. Accordingly, we affirm.
All further rule references are to the California Rules of Court. --------
FACTS
Trial
In December 2014, the victim placed an advertisement on Craigslist to sell her car. A female called and asked to see the car that night, so the victim agreed to meet the female caller after work. The victim provided the female caller with her home address. A man, later identified as codefendant, Alen Odisho, called and said he was there and ready to look at the car. After looking at the car, Odisho asked to take it for a test drive. The victim rode in the passenger seat while Odisho drove. At some point Odisho said he needed to park and have the victim drive so he could call a friend to check the car through Carfax. He pulled over on a dark residential street, and as the victim opened the door, Odisho asked for the title to get the vehicle identification number. The victim handed him the title, and as she stepped out of the car, he drove away leaving the victim alone in the dark and rain.
The next day police received a call from Vannak Ou who had tried to buy the car from a Craigslist advertisement. Though he arranged to look at the car, he was suspicious, because the price seemed too low. As Ou called the police with the vehicle identification number to try to determine whether the car was stolen, defendant got in the car and drove off. Ou reported the incident to police, and police soon found defendant driving the car.
The People charged defendant by information in count 1 with felony vehicle taking with a prior conviction (§ 666.5, subd. (a); Veh. Code, § 10851, subd. (a)) and in count 2 with receiving stolen vehicle with a prior conviction (§ 666.5, subd. (a); § 496d, subd. (a)). Defendant admitted the prior offense allegation. A jury found defendant guilty as charged.
Sentencing
At the outset of the sentencing hearing, the court stated it had read and signed the probation and sentencing report. The probation and sentencing report does not contain a recommended sentence, and neither the People nor defendant filed a sentencing brief. As the hearing began, the court stated, "My tentative sentence would be to give [defendant] three years. Luckily for him he can serve it at the Orange County Jail per 1170(h) due to recent law changes." The prosecutor submitted on the court's tentative sentence.
Defense counsel referenced an in-chambers discussion and then asked the court to consider several points, including that defendant is not a career criminal, he has no family support in this country, and he is not a violent criminal. The following ensued between the court and counsel:
"THE COURT: Well, you know, I'm not impressed with what he has been doing lately. He obviously didn't learn his lesson in L.A. when he responded to a Craigslist ad, met someone, took a test ride, and basically was able to get the owner to get out of their car and then drive away with that person's car, and then later selling that stolen car. He was put on probation in L.A. I am assuming he has a P.V. still pending there.
"DEFENSE COUNSEL: That is my understanding.
"THE COURT: Obviously he didn't learn anything from that because then he comes down to O.C. and there is another Craigslist scam where he is in possession of a car that was procured in the same manner. Someone shows up to allegedly buy the car, there is a test ride, owner gets out, car keeps driving away with the thief in it. Then [defendant] is trying to sell the car less than 12 hours later.
"Then in addition he has the other pending case where he appears to be working with someone else in defrauding a dealership of a brand new vehicle and then selling it to a bona fide purchaser who then gets stuck with the car and there are all sorts of DMV complications.
"So the bottom line is if you are involved in that activity, there is a price to be paid. The price to be paid is you lose your freedom."
"THE COURT: He is statutorily eligible for probation, but there is no way I'm going to give him probation because, number one, he already had probation in L.A. Number two, which really makes matters worse for him is that he committed this crime while he was on probation from the last crime. That is an aggravating factor. The L.A. case involved a Craigslist scam also. Also he was an active participant in this case. He tried to sell the car which was stolen less than 12 hours earlier. That would be factor two.
"Factor three, this wasn't just a crime of opportunity. This is organized and sophisticated and planned. So this is not something that he just stumbled upon. This created a little bit of thinking in order to meet the victim, meet the victim at night. The initial call was a female. So a female calling in inquiring about the car talking to the owner who was a female. Maybe the female owner felt a little bit more comfortable about meeting a female at night after work. Well, it just so happens that a female did not show up and a male showed up, and then the victim was left stranded on the side of the road after being scammed of her car.
"Also he had these three instances, three law enforcement contacts in a row. The L.A. case, this case, and the pending case. Obviously nothing phases him. He keeps doing it. I am going to send a message with my sentence and hopefully his Craigslist scams will come to an end. So those are the reasons why he is not getting probation, which leaves us with the sentencing.
"On count 1 the court imposes the middle term three years. That's three years state prison. However, he is going to get to serve that at the jail per 1170(h). Count 2, receiving stolen property charge midterm three years, imposition of sentence stayed per 654."
Later, the following colloquy ensued:
"[THE COURT:] When he is released from Orange County Jail, he will be placed on a minimum term of parole of three years. Could be less, could be more. There will be a parole term.
"DEFENSE COUNSEL: Your honor, my understanding is if it's 1170(h) serving county jail, there would not be parole.
"THE COURT: I stand corrected then.
"DEFENSE COUNSEL: There would be no supervision after he is released.
"THE COURT: All right. Do they have any special name on that? There is no PCS?
"DEFENSE COUNSEL: There wouldn't be PCS.
"THE COURT: Because there is no split sentence.
"DEFENSE COUNSEL: There is no mandatory supervision because it's not split. There is no parole or PCS because he's not going to CDC. There is no supervision upon release. There is the L.A. case that he would have to deal with."
The court imposed a jail term of three years as to count 1 and stayed sentence as to count 2.
DISCUSSION
The Court Erred In Failing to Articulate Its Reasons for Denying Mandatory Supervision
"In 2011, the Legislature enacted and amended the Criminal Justice Realignment Act of 2011 addressing public safety [citations] (the Realignment Act or the Act). As relevant here, the Realignment Act significantly changes the punishment for some felony convictions. Under the terms of the Act, low-level felony offenders who have neither current nor prior convictions for serious or violent offenses, who are not required to register as sex offenders and who are not subject to an enhancement for multiple felonies involving fraud or embezzlement, no longer serve their sentences in state prison. Instead, such offenders serve their sentences either entirely in county jail or partly in county jail and partly under the mandatory supervision of the county probation officer." (People v. Scott (2014) 58 Cal.4th 1415, 1418-1419; § 1170, subd. (h)(2), (3), (5).) "Felony offenders who are sentenced to county jail may be eligible for a county home detention program in lieu of confinement [citation] and are not subject to parole, which extends only to persons who have served state prison terms." (Scott, at p. 1419.)
Section 1170, subdivision (h)(5) provides, in relevant part, "(5)(A) Unless the court finds that, in the interests of justice, it is not appropriate in a particular case, the court, when imposing a sentence pursuant to paragraph (1) or (2), shall suspend execution of a concluding portion of the term for a period selected at the court's discretion. [¶] (B) The portion of a defendant's sentenced term that is suspended pursuant to this paragraph shall be known as mandatory supervision, and, unless otherwise ordered by the court, shall commence upon release from physical custody or an alternative custody program, whichever is later." (Italics added.) The so-called "split sentence" under section 1170, subdivision (h)(5) "requires that in eligible cases a trial court suspend the concluding portion of a jail sentence and impose mandatory supervision." (People v. Arce (2017) 11 Cal.App.5th 613, 615.)
Rule 4.415(a) states "Except where the defendant is statutorily ineligible for suspension of any part of the sentence, when imposing a term of imprisonment in county jail under section 1170(h), the court must suspend execution of a concluding portion of the term to be served as a period of mandatory supervision unless the court finds, in the interest of justice, that mandatory supervision is not appropriate in a particular case. Because section 1170(h)(5)(A) establishes a statutory presumption in favor of the imposition of a period of mandatory supervision in all applicable cases, denials of a period of mandatory supervision should be limited." (Italics added.)
Rule 4.415(d) provides in relevant part, "when a court denies a period of mandatory supervision in the interests of justice, the court must state the reasons for the denial on the record." (Italics added; see Rule 4.406(b) ["Sentence choices that generally require a statement of a reason include:" "(11) Denying mandatory supervision in the interests of justice under section 1170(h)(5)(A)"].) "If the sentencing judge is required to give reasons for a sentence choice, the judge must state in simple language the primary factor or factors that support the exercise of discretion or, if applicable, state that the judge has no discretion. The statement need not be in the language of these rules. It must be delivered orally on the record." (Rule 4.406(a), italics added.)
Here the court acknowledged during a colloquy with defense counsel that it was not imposing a split sentence, but the court did not address its reasons for denying a split sentence as required by the mandatory language contained in section 1170, subdivision (h)(5)(A) and Rules 4.415 and 4.406.
Defendant Forfeited His Right to Raise Error on Appeal
Defendant did not object to the court's failure to address its reasons for denying a split sentence at the sentencing hearing. On appeal he concedes his claim of error has been forfeited and fails to identify any legal basis establishing an exception to the forfeiture rule. And rightly so. There is none. Ordinarily, an appellate court will not consider a claim of error if an objection could have been, but was not, made in the lower court. (People v. Saunders (1993) 5 Cal.4th 580, 589-590.) The forfeiture rule applies in the context of alleged sentencing error. "[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356.)
Defense Counsel Did Not Render Ineffective Assistance
In anticipation of our application of the forfeiture rule, defendant argues to the extent his trial counsel failed to advocate for a split sentence, counsel rendered ineffective assistance.
The benchmark for evaluating a claim of ineffective assistance is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Strickland v. Washington (1984) 466 U.S. 668, 686 (Strickland).) A defendant alleging ineffective assistance of counsel must meet a two-pronged test: (1) defendant must show counsel's performance was deficient and (2) defendant must show he was prejudiced by the deficient performance. (Id. at p. 687.) To establish prejudice, the defendant must show a reasonable probability — sufficient to undermine confidence in the outcome — that, but for the allegedly deficient performance, the result of the proceeding would have been different. (Id. at pp. 693-694.)
"Counsel's duty at sentencing is to be familiar with the sentencing alternatives available to the court, to make sure that the court is aware of such alternatives, to explain to his or her client the consequences of the various dispositions available and to be certain that the sentence imposed is based on complete and accurate information." (People v. Cotton (1991) 230 Cal.App.3d 1072, 1085.) The record demonstrates defendant's trial counsel was aware of defendant's eligibility for a split sentence, because counsel referenced a split sentence when discussing parole with the judge.
Nevertheless, we need not decide whether counsel's performance was deficient, because defendant has not demonstrated prejudice. (People v. Camino (2010) 188 Cal.App.4th 1359, 1377 [court need not address both components of ineffective assistance inquiry if defendant makes insufficient showing on one]; Strickland, supra, 466 U.S. at p. 691 ["An error by counsel, even if professionally unreasonable, does not warrant setting aside a judgment of a criminal proceeding if the error had no effect on the judgment"].) A reviewing court can adjudicate a claim of ineffective assistance of counsel on the ground of lack of sufficient prejudice without determining whether the attorney's performance was deficient. (Strickland, at p. 697.)
Rule 4.415(b) sets forth criteria for denying mandatory supervision in the interests of justice. It provides, "In determining that mandatory supervision is not appropriate in the interests of justice under section 1170(h)(5)(A), the court's determination must be based on factors that are specific to a particular case or defendant. Factors the court may consider include: [¶] (1) Consideration of the balance of custody exposure available after imposition of presentence custody credits; [¶] (2) The defendant's present status on probation, mandatory supervision, postrelease community supervision, or parole; [¶] (3) Specific factors related to the defendant that indicate a lack of need for treatment or supervision upon release from custody; and [¶] (4) Whether the nature, seriousness, or circumstances of the case or the defendant's past performance on supervision substantially outweigh the benefits of supervision in promoting public safety and the defendant's successful reentry into the community upon release from custody." The court addressed several of these factors in declining to grant probation, and there is nothing to indicate the court's reasoning would have been different in denying a split sentence.
On appeal defendant has not demonstrated he should have been granted a split sentence under the criteria the court should have considered according to Rule 4.415(b). (People v. Alvarado (2001) 87 Cal.App.4th 178, 194-195 ["[E]ven if we believed counsel should have objected, we would nevertheless find his failure to do so harmless. Simply put, given the record, we do not consider it reasonably probable the court would have been unable to provide sufficient reasons for consecutive sentences or that it would have imposed concurrent sentences"].) As such, he has failed to demonstrate prejudice.
DISPOSITION
The judgment is affirmed.
IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.